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TMI Blog1950 (3) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... urt constituting of Sir Harilal Kania, Ag. C. J., as he then was, and myself, in Sheshgiridas Shanbhag v. Sunderrao 48 Bom. L. R. 252 : A. I. R. 1946 Bom. 361, and we held that allowing an amendment of the plaint was not a judgment within clause (15), Letters Patent. Mr. Seervai has tried to distinguish this judgment. According to him we were dealing there with a case where the contention was that the order made by my brother Coyajee J., granting leave to amend the plaint allowed matters to be pleaded which went beyond the scope of the suit and we held that assuming the learned Judge was wrong in allowing the amendment, the most that could be said was that he had improperly exercised the discretion vested in him to make the order under O. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the one with which we are concerned is where it does not disclose a cause of action. Mr. Seervai's argument is that when a plaint comes before the Court and that plaint does not disclose a cause of action, it is mandatory upon the Court to reject that plaint and dismiss the suit and the Court has no power to permit the plaint to be amended. In other words, Mr. Seervai's contention is that O. 6, R. 17, is controlled by O. 7, R. 11, and in cases falling under O. 7, R. 11, the Court has no jurisdiction to order the amendment of the plaint. I am unable to accept that contention. I see no reason whatever why the power of the Court to allow amendment of pleadings should be in any way restricted or controlled by the provisions contained i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t should be allowed or not must always be a question of the proper or improper exercise of the discretion by the Court. It cannot be said that when a Court allows an amendment of the plaint the Court is acting without jurisdiction. In that particular case the order of the Court may be attacked and successfully attacked and it may be shown that the exercise of the discretion by the Court was not a proper discretion. But I am unable to agree with Gentle J., that the Court has no jurisdiction to allow an amendment of the plaint which on the face of it did not disclose a cause of action. In coming to the decision Gentle J., relied on an earlier decision of the Calcutta High Court which is a decision of a Division Bench and that is the case of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 252: A. I. R. 1946 Bom. 361, and that very case was attempted to be pressed into service by Mr. Desai who then argued the appeal for the proposition that the Privy Council had laid down that the Court had no jurisdiction to substitute one cause of action for another, and in my judgment I have pointed out that the Privy Council does not say that the Court had no jurisdiction to make an order for amendment. As a matter of fact, if one reads the judgment of Lord Buckmaster it is clear that all that the Privy Council was laying down was that in that particular case, viz., of substituting one cause of action, for another, leave to amend could not be considered to be properly given in accordance with the rules by which leave to amend must neces ..... X X X X Extracts X X X X X X X X Extracts X X X X
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